In re R.Y.

Supreme Court of West Virginia

November 2, 2017

In Re: R.Y.

(Mercer
County 15-JA-199)

MEMORANDUM DECISION

T.Y.
(hereinafter the "petitioner" or
"mother") appeals the October 21, 2016, order of
the Circuit Court of Mercer County terminating her parental
rights to her daughter, R.Y.[1]The petitioner also asserts error
regarding several pre-termination rulings of the circuit
court. The respondents, the Department of Health and Human
Resources ("DHHR") and the child's guardian ad
litem, argue in support of the circuit court's
actions.[2]

After
considering the parties' written and oral arguments, as
well as the record on appeal and the applicable law, this
Court finds no substantial question of law and no prejudicial
error. For these reasons, a memorandum decision affirming the
circuit court's orders is appropriate under Rule 21 of
the Rules of Appellate Procedure.

I.
Facts and Procedural History

Upon
her birth in November 2015, the infant R.Y. tested positive
for the presence of opiates in her system. The hospital
advised the DHHR of this test result and that R.Y. was
exhibiting physical signs of withdrawal, including tremors, a
hypertonic tone, regurgitation, and sneezing. The hospital
categorized these symptoms as "an 8 on the withdrawal
scale." The petitioner mother asserted that she had a
prescription to take opiate pain medication during her
pregnancy, which the DHHR later confirmed. When questioned by
a DHHR worker, the petitioner denied taking any illegal drugs
during her pregnancy.

In
addition, the DHHR knew the petitioner had been the subject
of an abuse and neglect case that began in 2006 and resulted
in the involuntary termination of her parental rights to two
other children in 2008. When terminating her rights in 2008,
the circuit court found the petitioner had "habitually
abused or is addicted to controlled substances or drugs to
the extent that her proper parenting skills have been
seriously impaired, and she has not followed through with the
recommended and appropriate treatment which could have
improved her capacity for adequate parental
functioning[.]" The petitioner was unable to complete an
improvement period in that case because she was incarcerated.

On
November 17, 2015, the DHHR and the petitioner agreed to a
voluntary temporary protection plan whereby the
petitioner's mother, who lived nearby, would check on the
petitioner and R.Y. every day. On November 20, 2015, the
hospital advised the DHHR that R.Y.'s meconium (first
stool) had tested positive for the presence of cocaine and
marijuana, indicating that the petitioner had ingested these
illegal drugs during her pregnancy. The same day, the DHHR
and the petitioner agreed to a new voluntary temporary
protection plan placing R.Y. in the maternal
grandmother's home. Pursuant to this agreed plan, the
petitioner could visit the baby at any time so long as it was
under the maternal grandmother's supervision.

On
December 4, 2015, the DHHR filed an abuse and neglect
petition against the petitioner citing both the
petitioner's drug use while pregnant with R.Y. and the
prior terminations.[3] At that time, the DHHR did not know the
identity of R.Y.'s father. The circuit court entered an
order on December 4, 2015, directing that the abuse and
neglect petition be filed, appointing counsel for the
petitioner, appointing a guardian ad litem for the child, and
scheduling a status hearing. This order did not
address the issue of the child's placement and did not
award custody to the DHHR.

Meanwhile,
in early December 2015, the DHHR removed R.Y. from the
maternal grandmother's home and placed the baby in the
home of the petitioner's ex-boyfriend, B.R., and
B.R.'s girlfriend, C.G.[4] Although B.R. is not R.Y.'s
father, he is the biological father of the petitioner's
other two children. One of those children, a teenaged boy,
lives with B.R. and C.G. The DHHR removed R.Y. from the
maternal grandmother's home without the petitioner's
consent, without performing a suitability study of B.R. and
C.G.'s home, and without obtaining a court order
regarding the removal.

On
January 4, 2016, the status hearing was held during which the
circuit court expressed concern about the DHHR's removal
of the child without seeking a preliminary hearing or
obtaining a court order. The court inquired whether the
petitioner wanted a hearing on this issue. The petitioner
responded in the affirmative and the court heard evidence. A
DHHR worker testified that the child was moved to a sibling
placement because the maternal grandmother had ongoing health
issues stemming from a previous stroke. By written order
entered January 29, 2016, the court concluded that the DHHR
took R.Y. without affording the petitioner due process.
Nonetheless, the court also found that continuation with the
petitioner and the maternal grandmother would have been
contrary to the child's best interests and probable cause
existed to support the removal. As such, the child remained
in her temporary placement with B.R. and C.G.

Although
she did not initially identify R.Y.'s father, at some
point the petitioner advised the DHHR that the father is M.W.
The circuit court ordered testing to establish M.W.'s
paternity and, in February 2016, the DHHR amended its abuse
and neglect petition to add a claim against M.W. for the
failure to support this child.

The
adjudication hearing began on February 8, 2016. At that time,
the petitioner testified and denied the use of cocaine or
marijuana during her pregnancy. She claimed that she only
took opiate pain medication pursuant to a prescription, and
suggested that the results of the drug tests of R.Y.'s
meconium were incorrect. However, when the adjudication
hearing resumed on March 4, 2016, the petitioner offered to
stipulate that R.Y.'s meconium had tested positive for
the presence of cocaine and marijuana. By order entered on
March 16, 2016, the circuit court adjudicated the petitioner
as an abusive parent because she abused drugs during her
pregnancy. The court also adjudicated the father M.W. as
neglectful for having failed to provide proper support when
he knew he had a relationship with the petitioner that could
have resulted in the birth of a child.[5] The court awarded
M.W., but not the petitioner, a post-adjudicatory improvement
period.

During
the adjudication hearing, both the petitioner and the DHHR
objected to the child remaining in the home of B.R. and C.G.
To address these objections, the circuit court held a
separate hearing on the placement issue on March 25, 2016.
Although no testimony was offered at the March 25 hearing,
counsel referenced an alleged prior domestic violence
incident between B.R. and his former wife. There was also a
report of bacteria found in the water inside B.R. and
C.G.'s home. The petitioner requested that the child be
placed with the paternal grandparents, whose home
had since been approved by the DHHR. The petitioner argued
that placement with the paternal grandparents would
facilitate the DHHR's plan of ultimate reunification of
the child and the father. At the March 25 hearing, the DHHR
withdrew its objection to the placement with B.R. and C.G.
The DHHR had satisfied itself that the facts of the domestic
violence claim were not a problem, and it had confirmed the
installation of a water filtration system inside B.R. and
C.G.'s home. The guardian ad litem supported leaving the
child in B.R. and C.G.'s home because the child had
already been there for a few months and because a
half-sibling resided in the home. At the conclusion of the
March 25 hearing, the circuit court relied upon the guardian
ad litem's recommendation and ordered that R.Y. would
remain in her temporary placement.

A
disposition hearing was held on July 11, 2016, and October 6,
2016. The petitioner presented evidence from two service
providers that she was doing well with her weekly,
four-hour-long, supervised visits with R.Y. and with
parenting education lessons. The petitioner's parole
officer testified that in three drug screens administered in
a two-year period, the petitioner only tested positive for
prescribed medication. The last of those screens was
administered approximately two months before R.Y. was born
with illegal drugs in her system. One of the service
providers testified that since the current abuse and neglect
petition has been pending, the petitioner tested positive for
marijuana. At the end of the July 11 hearing, the petitioner
admitted that, if tested that very day, she would be positive
for marijuana. During the October 6 hearing, her attorney
admitted that the petitioner had a drug problem. The
petitioner moved for a post-adjudicatory improvement period
that would include drug treatment, which the court denied.
The circuit court verbally ruled that "based upon the
evidence from prior hearings and the evidence that she's
still having problems today, I'm going to terminate the
rights of" the petitioner.

The
termination decision was finalized by written order entered
on October 21, 2016, and the petitioner appealed. The parties
have notified the Court that during the pendency of this
appeal, R.Y. was moved into the home shared by the father
M.W. and his parents.

II.
Standard of Review

When
reviewing a circuit court's order in an abuse and neglect
case, we apply a "compound standard of review:
conclusions of law are subject to a de novo review,
while findings of fact are weighed against a clearly
erroneous standard." In re Emily, 208 W.Va.
325, 332, 540 S.E.2d 542, 549 (2000). In further elaboration
of these standards, this Court explained:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
873 (2011). With these standards in mind, we will separately
address each of the petitioner's assignments of error.

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